United States District Court, D. Montana, Missoula Division
FINDINGS AND RECOMMENDATIONS OF UNITED STATES
JEREMIAH C. LYNCH UNITED STATES MAGISTRATE JUDGE
February 8, 2019, Travis Clinton Rhett Plantiko filed a Writ
of Habeas Corpus with this Court. Mr. Plantiko's petition
was not filed on the Court's standard form and his claims
were difficult to follow. Additionally, Mr. Plantiko did not
pay the filing fee nor did he submit a motion to proceed in
forma pauperis. Mr. Plantiko was provided with the
Court's standard Amended Petition form along with an
application to proceed in forma pauperis.
Plantiko was directed to either complete and return the
court's in forma pauperis form along with a copy of his
inmate trust account statement or pay the requisite filing
fee. (Doc. 2 at 2). Mr. Plantiko was also directed to clarify
his claims and submit an Amended Petition. Id. at
2-3. Mr. Plantiko was informed that if he failed to comply
with the Court's order, the matter would be dismissed.
Id. at 3. Mr. Plantiko has not complied. Based upon
Mr. Plantiko's failure to comply, this matter should be
dismissed pursuant to Rule 41(b) of the Federal Rules of
Court has the inherent power to achieve the orderly and
expeditious disposition of cases by dismissing actions
pursuant to Fed. R. Civ.P. 41(b) for failure to prosecute and
failure to comply with court orders. Link v. Wabash
Railroad Co., 370 U.S. 626, 633 (1962); see also
Pagtalunan v. Galaza, 291 F.3d 639, 640
(9th Cir. 2002), cert, denied, 538 U.S. 909
(2003)(affirming dismissal of § 2254 habeas petition
because of petitioner's failure to comply with court
orders). Because dismissal is a harsh penalty, the Court must
weigh the following five factors when considering whether to
dismiss for failure to comply with Court orders: (1) the
public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendants/respondents; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions." Pagtalunan, 291 F.3d at 642.
public's interest in expeditious resolution of litigation
always favors dismissal." Yourish v. California
Amplifier, 191 F.3d 983, 990 (9th Cir. 1999).
Given Plantiko's failure to comply with the Court's
order and to participate in his case, this factor weighs in
favor of dismissal.
the second factor supports dismissal. "The trial judge
is in the best position to determine whether the delay in a
particular case interferes with docket management and the
public interest." Pagtalunan, 291 F.3d at 642.
The Court cannot manage its docket if Mr. Plantiko refuses to
comply with the Court's orders. Mr. Plantiko's case
has consumed time that could have been spent on other cases
on the docket. Therefore, this factor favors dismissal.
third factor requires the Court to weigh the risk of
prejudice to the Respondents. In some cases "the failure
to prosecute diligently is sufficient by itself to justify a
dismissal, even in the absence of a showing of actual
prejudice to the defendant." In re Eisen, 31
F.3d 1447, 1452-53 (9th Cir. 1994). Because
Plantiko has not attempted to comply with this Court's
order or provided a basis for his failure to respond in a
diligent manner, the prejudice element also favors dismissal.
Court has considered less drastic alternatives. Alternatives
may include "allowing further amended complaints,
allowing additional time, or insisting that appellant
associate experienced counsel." Nevijel v. North
Coast Life Insurance Co., 651 F.2d 671, 674
(9th Cir. 1981). Although less drastic
alternatives to dismissal should be considered, the Court is
not required to exhaust all such alternatives prior to
dismissal. Id. Mr. Plantiko was made aware of his
obligation and afforded the opportunity to comply. (Doc. 2).
Mr. Plantiko has not responded, thus, the Court can envision
no further alternatives to dismissal.
last factor weighs against dismissal because public policy
favors disposition of cases on their merits. Hernandez v.
City of El Monte, 138 F.3d 393, 399 (9th Cir.
1998). But in light of the other four factors favoring
dismissal, the Court finds that this matter should be
dismissed for Plantiko's failure to comply with the
upon the foregoing, the Court issues the following:
matter should be DISMISSED pursuant to Rule 41(b) fo the
Federal Rules of Civil Procedure.
Clerk of Court should be directed to enter by separate
document a judgment in favor of ...